In
this court, plaintiffs argue that ORS 244.025(2)
and ORS 244.042(3)
impermissibly restrain free expression and lobbying activities in violation of
Article I, section 8, of the Oregon Constitution and the First Amendment to the
United States Constitution by, among other things, prohibiting expenditures
designed to facilitate dialogue and obtain goodwill with public officials.�
Plaintiffs also argue that the restrictions impermissibly discriminate between
different types of speech and different classifications of speakers.� Finally,
plaintiffs argue that the statutory restrictions violate Article I, section 26,
of the Oregon Constitution in that they impermissibly restrain plaintiffs'
rights to instruct their representatives and to apply to the Legislative
Assembly for the redress of grievances.

"No
law shall be passed restraining the free expression of opinion, or restricting
the right to speak, write, or print freely on any subject whatever; but every
person shall be responsible for the abuse of this right."

In
State v. Robertson, 293 Or 402, 649 P2d 569 (1982), this court set out a
framework within which to analyze challenges to statutes under Article I,
section 8, which the court later summarized in State v. Plowman, 314 Or
157, 164, 838 P2d 558 (1992), cert den, 508 US 974 (1993):

"First, the court recognized a distinction between laws
that focus on the content of speech or writing and laws that focus on
proscribing the pursuit or accomplishment of forbidden results.� [Robertson,]
293 Or at 416-17.� The court reasoned that a law of the former type, a law
'written in terms directed to the substance of any "opinion" or any
"subject" of communication,' violates Article I, section 8,

"'unless the scope of the restraint is
wholly confined within some historical exception that was well established when
the first American guarantees of freedom of expression were adopted and that
the guarantees then or in 1859 demonstrably were not intended to reach.'� Id.
at 412.

"Laws
of the latter type, which focus on forbidden results, can be divided further
into two categories.� The first category focuses on forbidden effects, but
expressly prohibits expression used to achieve those effects.� The coercion law
at issue in Robertson was of that category.� Id. at 417-18.� Such
laws are analyzed for overbreadth:

"'When the proscribed means include speech
or writing, however, even a law written to focus on a forbidden effect * * *
must be scrutinized to determine whether it appears to reach privileged
communication or whether it can be interpreted to avoid such
"overbreadth."'� Ibid.

"The second kind of law also focuses on
forbidden effects, but without referring to expression at all.� Of that
category, this court wrote:

"'If [a] statute [is] directed only against
causing the forbidden effects, a person accused of causing such effects by
language or gestures would be left to assert (apart from a vagueness claim)
that the statute could not constitutionally be applied to his particular words
or other expression, not that it was drawn and enacted contrary to Article I,
Section 8.'� Id. at 417."

(Emphases,
brackets, and ellipsis in original; footnote omitted.)

Our
first task, then, is to determine whether the various statutes under
consideration here are "written in terms directed to the substance of any
'opinion' or any 'subject' of communication."� Robertson, 293 Or at
412.� As this court observed in Robertson, if a law by its terms restrains
the free expression of opinion or restricts the right to speak freely on any
subject, it violates Article I, section 8.

A.������� Gift receipt restrictions

ORS 244.025(1) provides that a public
official "may not * * * receive" a gift or gifts exceeding $50 in
value from a lobbyist.� ORS 244.025(4)(a) prohibits a public official from
receiving from a lobbyist payment of expenses for entertainment in any amount.�
ORS 244.042(1) and (2) prohibit a public official, a candidate for public
office, or a member of the official's or candidate's household from receiving
from a lobbyist honoraria with a value in excess of $50.� For brevity's sake,
we refer to those statutory limitations as restrictions on the receipt of
gifts.

As noted above, the statutory
restrictions regulate a particular kind of conduct:� the receipt of specified
gifts.� "Receive" means "to take possession or delivery of (a
gift) * * *."� Webster's Third New Int'l Dictionary 1894
(unabridged ed 2002).� The statutory restrictions are thus confined to the act
of a public official, a candidate, or a relative or member of their household,
in taking possession or delivery of a gift valued in excess of statutory
limits.

or (4) a household member of one of the foregoing persons.� Third, the party
must receive a gift or gifts, that is, take possession or delivery.� Fourth,
the gift or gifts must have an aggregate value in excess of statutory limits.�
Fifth, the gift or gifts (but not honoraria) must come from a source of the
kind identified by ORS 244.025(1):

"[A]ny single source that could reasonably
be known to have a legislative or administrative interest in any governmental
agency in which the public official holds, or the candidate if elected would
hold, any official position or over which the public official exercises, or the
candidate if elected would exercise, any authority."

Honoraria must be received in connection with the official
duties of either the public official or the public office for which the
receiver is a candidate.

In our view, the receipt of gifts
restrictions are not written in terms directed to the substance of any opinion
or any subject of communication, as Robertson explained that analytical
principle.� A public official who is subject to restrictions on the receipt of
gifts can violate the restrictions without saying a word, without engaging in
expressive conduct, and regardless of any opinion that he or she might hold.� In
Plowman, this court considered and rejected a similar free-speech
challenge to a hate crime statute, stating:

"Persons can commit that crime without
speaking a word, and holding no opinion other than their perception of the
victim's characteristics."

314 Or at 165.� Because the receipt of gifts restrictions do
not focus on the content of speech or writing, or on the expression of any
opinion, we have no reason to analyze whether the restrictions fall within a
well-established historical exception, id. at 163, or whether they
restrain communications that are incompatible with a speaker's official role or
responsibility.� See In re Lasswell, 296 Or 121, 673 P2d 855 (1983)
(discussing incompatibility exception).� Neither do the receipt of gifts
restrictions focus on proscribing the pursuit or accomplishment of forbidden
results, nor do they prohibit expression used to accomplish those forbidden
results.

Plaintiffs, however, relying on Fidanque,
argue that the receipt of gifts by public officials is so closely bound up with
lobbying communications -- which they assert are a constitutionally protected
form of expression -- that any restriction on the receipt of lobbyists' gifts
necessarily restrains the practice of lobbying itself.� �More specifically, plaintiffs argue that
this court should recognize gift-giving to legislators as a form of
constitutionally protected expression because (1) the act of gift-giving
typically is surrounded by communications about legislative business that constitute
protected expression; (2) the motive behind gift-giving to legislative
officials is the desire to influence governmental decisions, which reflects a
key reason why the constitution's framers chose to protect expression in the
constitution; and (3) any constitutional protection for political contributions
should apply equally to gifts to legislative officials because they are
indistinguishable from political contributions.� We address each of plaintiffs'
arguments, beginning with a discussion of this court's Fidanque decision.

In Fidanque, two lobbyists
challenged the validity of a statute that required all lobbyists to pay a
biennial registration fee to the government to engage in lobbying.� They
contended, among other things, that the registration fee interfered with their
free expression rights protected by Article I, section 8.� This court
recognized in Fidanque that lobbying was a profession that was
"essentially expressive [in] nature," 328 Or at 8, and that lobbying
constituted "political speech."� Id. at 7.� The registration
fee examined in Fidanque thus was a barrier to political expression by
lobbyists.� Id. at 9.� However, in striking down the registration fee,
this court did not express or imply that public officials or others are
entitled to take delivery of property or other largess, free of regulation,
simply because lobbyists proffer it in connection with a political
communication.� Nor did Fidanque express or imply that those who listen
to and interact with lobbyists -- public officials and candidates for office,
for example -- have a constitutional free expression right to receive gifts of
property, free of governmental regulation.

Although Fidanque properly
recognized that lobbying the legislature is "primarily expressive," id.
at 7, that case does not aid plaintiffs here, because it did not examine
specific types of lobbying activities to determine whether they involved
constitutionally protected expression and, to the extent they involve expression,
whether they are subject to legislative regulation.

This
court, however, has previously analyzed (1) whether regulated conduct should be
categorized as protected expression because other free speech activity
surrounds or accompanies the regulated conduct, and (2) whether the actor's
motive to express a viewpoint can require the court to treat regulated conduct
as protected expression.� In Huffman and Wright Logging Co. v. Wade, 317
Or 445, 857 P2d 101 (1993), the plaintiff, a logging company, brought a tort
action for trespass to chattels against six persons who had participated in a
demonstration against logging on a forest road.� During the demonstration, the
defendants, without permission, climbed on, and chained themselves to, several
pieces of the plaintiff's logging equipment.� While chained, the defendants
made statements, sang songs, and chanted slogans to express their views about
the environment.� Following a jury trial, the trial court entered a judgment
for compensatory and punitive damages against the defendants, and the Court of
Appeals affirmed the judgment.� Huffman and Wright Logging Co. v. Wade, 109
Or App 37, 817 P2d 1334 (1991).

On review, the plaintiffs challenged
the punitive damages award on free expression grounds.� After describing the
defendants' trespassory actions, this court stated:

"Although those acts undoubtedly had a communicative
effect, in the sense that most purposive human activity communicates something
about the frame of mind of the actor, the acts were conduct, not speech.� The
question becomes, then, whether defendants are nonetheless constitutionally
immune from potential responsibility for punitive damages because of the
message that their conduct assertedly was trying to convey, the reason for
their conduct, or the fact that speech accompanied their conduct."

"The first is that a person's reason for
engaging in punishable conduct does not transform conduct into expression
under Article I, section 8.� The second lesson is that speech accompanying
punishable conduct does not transform conduct into expression under Article
I, section 8."

317 Or at 452 (emphasis in original; citations omitted).

In Huffman, the court also observed
that it had established the analytical line between successful and unsuccessful
constitutional challenges to various forms of regulation of conduct by focusing
on whether speech was an element of the regulation or the cause of the claimed
damage.� On the one hand, the court had nullified punitive damages awards in
cases in which speech was an element of the tort at issue, see Wheeler v.
Green, 286 Or 99, 593 P2d 777 (1979) (defamation), or the defendant had
committed the tort only by speech, see Hall v. The May Dept. Stores, 292
Or 131, 637 P2d 126 (1981) (claim for intentional infliction of severe
emotional distress was based solely on store security officer's statements
during employee interrogation).� On the other hand, the court had concluded
that, in tort cases involving harm caused only in part by speech, "a
defendant who requests it is entitled to an instruction limiting the tortious
predicate for punitive damages to conduct not protected by the free speech
provision of Article I, section 8."� 317 Or at 457.� See,e.g.,
Lewis v. Oregon Beauty Supply Co., 302 Or 616, 733 P2d 430 (1987)
(illustrating principle).

The Huffman court then turned
to an application of those principles to the tort of trespass to chattels
involved in that case.� The court determined that the jury had been entitled to
find that the defendants' trespassory activities, such as chaining themselves
to the plaintiff's equipment,

"caused the disturbance of plaintiff's possession of
its personal property, wholly apart from any motivating opinion, underlying
message, or accompanying speech.� The trespassory acts were, therefore,
'non-expressive conduct' within the meaning of Lewis v. Oregon Beauty Supply
Co., supra.� The message that defendants sought to convey by their
conduct, the reason for their conduct, and the spoken and written words accompanying
their conduct did not transform defendants' conduct into speech."

317 Or at 458.� The judgment for punitive damages was
affirmed.� Id. at 462.

That brings us to plaintiffs' final argument, viz.,
that gift-giving by lobbyists to public officials is analogous to the giving of
political contributions to candidates and campaigns, and that, consistent with Vannatta
v. Keisling, 324 Or 514, 931 P2d 770 (1997) (Vannatta I), this court
should declare that the giving of gifts to public officials, like campaign
contributions, is constitutionally protected expression under Article I,
section 8.�

In Vannatta I, the plaintiffs
challenged various statutory measures, adopted through the initiative process, including
a mandatory limit on contributions to state political candidates and campaigns.�
The plaintiffs argued, among other things, that the contributions limitations violated
Article I, section 8, because campaign contributions and expenditures were
constitutionally protected expression under Article I, section 8.

In analyzing the plaintiffs' argument,
the Vannatta I court first accepted a concession by the parties that
campaign expenditures constitute protected expression.� �324 Or at 520.�
However, with regard to campaign contributions, the court noted that the
United States Supreme Court had held in Buckley v. Valeo, 424 US 1, 96 S
Ct 612, 46 L Ed 2d 659 (1976), that campaign contributions were a kind of
expression that was less central to the core of First Amendment expression and,
thus, were subject to governmental restriction, with the constitutionality of
any particular restriction being determined based on a balancing of the
interests involved.� Vannatta I, 324 Or at 521.� The court described two
of the reasons on which Buckley had relied for that conclusion:

"(i) although contributions may result in speech, that
speech is by the candidate and not by the contributor; and (ii) contributions
express only general support for a candidate and do not communicate the reasons
for that support."

Id.� The court in Vannatta I then stated:

"Neither of those assumptions appears
correct to us.� In our view, a contribution is protected as an expression by
the contributor, not because the contribution eventually may be used by a
candidate to express a particular message.� The money may never be used to
promote a form of expression by the candidate; instead, it may (for example) be
used to pay campaign staff or to meet other needs not tied to a particular
message.� However, the contribution, in and of itself, is the contributor's
expression of support for the candidate or cause -- an act of expression
that is completed by the act of giving and that depends in no way on the ultimate
use to which the contribution is put."

Id. at 522 (emphasis in original).

Plaintiffs,
relying -- not unreasonably, in our view -- on the preceding paragraph from Vannatta
I, assert that any donation to a political figure, including a
public official, that the donor intends as an expression of support is necessarily
a form of expression protected by Article I, section 8.� In our view, however, plaintiffs
read the foregoing statements out of context.� The statements on which
plaintiffs rely are best understood if we clarify and explain them in light of
the balance of the discussion in Vannatta I.

First,
the court's assertion in Vannatta I that a political contribution is
protected expression even if it never promotes any political messagewas
made in connection with the court's disagreement with the two assumptions,
noted above, on which the United States Supreme Court had relied for its ruling
in Buckley.� Second, and most important in our view, the court's
rationale for the holding in Vannatta I that "campaign
contributions" are protected speech is based on the assumption by the Vannatta
I court that campaign contributions are so inextricably intertwined with
the candidate or the campaign's expression of its message that the two cannot
be separated.� In other words, the Vannatta I court assumed that
restricting campaign contributions restricts a candidate's or a campaign's
ability to communicate a political message.� It is that assumption that
underlies the court's determination that the statutory campaign contribution
limitations at issue in Vannatta I violated Article I, section 8.�

Because
that premise -- restricting campaign contributions restricts the ability to
communicate political messages -- is in question here, two other clarifying
comments are necessary.� First, the court's statement in Vannatta I that
campaign contributions were constitutionally protected forms of expression
regardless of the "ultimate use to which the contribution is put" was
unnecessary to the court's holding.� On further reflection, we conclude that
that observation was too broad and must be withdrawn.� Second, because Vannatta
I assumed a symbiotic relationship between the making of contributions and the
candidate's or campaign's ability to communicate a political message, this
court did not squarely decide in Vannatta I that, in every case, the
delivery to a public official, a candidate, or a campaign of money or something
of value also is constitutionally protected expression as a matter of law.

The
foregoing discussion undermines plaintiffs' reliance on Vannatta I.�
Giving a gift to a public official is not inextricably linked with a public
official's ability to carry out official functions.� Public officials can speak
whether or not lobbyists have given them gifts, which distinguishes this case
from Vannatta I and its focus on the connection between the restriction
on campaign contributions and the candidate's or campaign's ability to communicate
a political message.� We agree with the state that the restrictions on
receiving gifts withstand plaintiffs' constitutional challenge because the
lobbying activity on which plaintiffs based their challenge -- giving gifts to
public officials -- is nonexpressive conduct.� That determination is consistent
with this court's analysis and conclusion in Huffman and Wright Logging Co.,and is correct, at least in the absence of facts (which plaintiffs do not
offer here) demonstrating that the state's enforcement of the restrictions has
the effect of suppressing or restricting expression in a specific case.� We
conclude, therefore, that the trial court correctly determined that plaintiffs'
challenges to the gift receipt restrictions were not well taken, and that the
court therefore correctly granted summary judgment in favor of the state.

We recognize that the same statutes
that restrict plaintiffs' right to communicate an offer of a gift that exceeds
the statutory limitations also prohibit the public official from accepting
the offered gift.� As we have discussed earlier, the statutory restrictions on
a public official's ability to accept specified gifts from lobbyists are
constitutionally valid.� In that light, it can be argued that, if the statutory
restrictions on the receipt of gifts are constitutionally permissible, there is
no need to analyze the statutory restriction on offering a gift:� any claimed right
to offer a gift to a public official is essentially rendered nugatory, if a
public official cannot accept it.� However, the restrictions on
"receiving" a gift and "offering" a gift apply to different
kinds of conduct and they deserve a separate constitutional analysis.� In our
view, the legal validity of restrictions on "receiving" gifts does
not resolve the question whether plaintiffs enjoy a constitutional free
expression right to communicate an "offer" of a gift.

Unlike the statutory restriction on
the receipt of gifts (including by implication a restriction on the giving of
gifts), the restrictions on "offering" gifts, when examined under the
Robertson methodology, are a type of law that focuses on the content of
speaking or writing:� offering a gift.� The restrictions on offering a
gift are not aimed at the pursuit or accomplishment of some forbidden results,
such as, perhaps, the regulation of conflicts of interest involving government
officials.� Rather, they focus on every utterance of an offer, of the kind
described in the statute, whether or not such an offer produces any invidious
effect.� See City of Portland v. Tidyman, 306 Or 174, 183-84, 759 P2d
242 (1988) (city ordinance prohibiting "adult bookstores" was
addressed to one disfavored type of communication by words and pictures;
ordinance was not written in terms of asserted negative effects of adult
bookstores).� The trial court correctly determined, insofar as the restrictions
on offering gifts are concerned, that those restrictions expressly regulate
speech by lobbyists.

"[A]rticle I, section 8 prohibits lawmakers from
enacting restrictions that focus on the content of speech or writing, either
because that content itself is deemed socially undesirable or offensive, or
because it is thought to have adverse consequences.� * * *� It means that laws
must focus on proscribing the pursuit or accomplishment of forbidden results
rather than on the suppression of speech or writing either as an end in itself
or as a means to some other legislative end."

Robertson, 293 Or at 416-17.� Applying that standard
here, we also conclude that the restrictions on "offering" gifts do
not focus on the pursuit or accomplishment of forbidden results.

The state next contends that the
restrictions on offering gifts qualify as permissible reasonable limitations on
the time, place, and manner of expression that leave open ample avenues for
engaging in the proscribed expression.� We disagree.

In Tidyman, this court stated:

"A regulation is not always unconstitutional
because it restricts one's choice of a place or time for self-expression or
religious practice, when that is not the object of the regulation."

306 Or at 182.� Tidyman explained several ways in
which a city permissibly could limit "all location, time, manner,
intensity, or invasive effect of some communicative activity * * * [or impose]
limitations of number, frequency, density, or duration" of communication.�
Id. At 183.� The court listed, as examples, the granting of evenhanded
exceptions to otherwise valid restrictions on the placement of signs, the flow
of traffic during a demonstration, and the use of sound trucks during a
campaign.� But, as noted, those examples did not assist the city there, because
its ordinance was drafted to prohibit one kind of disfavored speech, i.e.,
adult bookstores.�

Outdoor Media Dimensions v. Dept.
of Transportation, 340 Or 275, 132 P3d 5 (2006), elaborated on the holding
in Tidyman, explaining that, although content-neutral time, place, and
manner restrictions on speech can be sustained, that category of regulations
concerns laws that

"focus on the accomplishment of 'forbidden results,'
but do so by restricting expression, [and therefore] such restrictions appear
to come within the second of the three Robertson categories."

Id. at 288.� As noted, the "second Robertson
category" refers to laws that prohibit expression used to achieve
prohibited effects.� The restrictions on the offering of gifts, as noted, do
not fall within the second Robertson category, because they expressly
prohibit disfavored speech without referring at all to prohibited effects that
the legislature may proscribe.� The restrictions on offering gifts also do not
qualify as limitations on the time, place, and manner of speech.� The
restrictions apply to every offer of a gift that meets the statutory criteria,
regardless of when, where, and in what manner it is made.

The
state concedes that "soliciting" a gift or honorarium from a lobbyist
is protected expression.� It nonetheless argues, however, that, for other
reasons, the statutory restraint on speech represented by the solicitation
restrictions is a permissible one.� In our view, however, we need not consider the
state's concession unless we first determine whether plaintiffs are statutorily
qualified to seek declaratory relief regarding the solicitation restrictions
described above.� ORS 28.020 provides that a person "whose rights, status
or other legal relations are affected by a constitution [or] statute * *
* may have determined any question of construction or validity arising under
any such * * * constitution [or] statute * * * and obtain a declaration of
rights, status or other legal relations thereunder."� (Emphasis added.)

In
Gruber v. Lincoln Hospital District, 285 Or 3, 7, 588 P2d 1281 (1979),
this court stated that plaintiffs seeking declaratory relief under ORS chapter
28 and ORS 20.020 must show how their

"'rights, status, or other legal relations are
affected' by an instrument or enactment, the construction or validity of which
[the plaintiff] seeks to have determined.� Standing under this section has been
denied when the showing of the required effect has been too speculative or
entirely missing."

(Citations omitted.)

Determining
whether plaintiffs have standing to seek declaratory relief in this proceeding
is a question of legislative intent:

"When it is ruling on a standing issue, a reviewing
court must focus on the wording of the particular statute at issue, because
standing is not a matter of common law but is, instead, conferred by the
legislature."

Based
on the foregoing, we conclude that plaintiffs do not qualify under ORS 20.080
as parties "affected" by the solicitation restrictions.� They
therefore are not entitled to seek declaratory relief from those restrictions.�
Plaintiffs are not entitled to an adjudication of the constitutionality of the
solicitation restrictions in ORS 244.025(1) and (4)(a) and ORS 244.042(1) and
(2).� The trial court should have dismissed plaintiffs' complaint with respect
to that claim.

D.������� First Amendment:� Classification of speakers

Plaintiffs also challenge the gift
and entertainment restrictions under the First Amendment to the United States
Constitution.� Their theory is that the gift and entertainment restrictions
apply unevenly, and therefore unconstitutionally, because they suppress the
federal speech rights of lobbyists (i.e., persons with a legislative or
administrative interest) but not others.

We have already concluded that the
receipt of gift and entertainment restrictions do not abridge the right of free
expression under Oregon's constitution because, as a general matter, they
regulate nonexpressive conduct, not expression.� Plaintiffs fail to demonstrate
that the United States Supreme Court would construe and apply the First
Amendment to those restrictions, and yet reach a different conclusion under
federal law.� We are not aware of any pertinent federal authority that would
compel a different answer.� Because plaintiffs have not established that the
receipt of gift and entertainment restrictions deny a First Amendment right,
their contentions regarding the alleged discriminatory application of those
restrictions to different classifications of persons are unavailing.

"No law shall be passed restraining any of
the inhabitants of the State from assembling together in a peaceable manner to
consult for their common good; nor from instructing their Representatives; nor
from applying to the Legislature for redress of greviances (sic)."

Plaintiffs assert that, "by
prohibiting * * * expenditures to inform or persuade legislators regarding
legislative matters, the lobbying restrictions impermissibly restrain Oregon
inhabitants from 'instructing their Representatives' or 'applying to the
Legislature for redress of' grievances.'"� However, plaintiffs have failed
to support their assertions with any case law, or with any analysis of the
origins, the historic concerns, or the drafters' political theories that
underlie Article I, section 26. �See State v. Montez, 309 Or 564, 604, 789
P2d 1352 (1990) (without extensive briefing on the origins, historic concerns,
and political theories underlying federal Guarantee Clause, court would not consider
full range of arguments that could be made regarding impact of Guarantee Clause
on constitutionality of death penalty statute).� �In the absence of that kind
of extensive and focused analysis in this case, we fail to see how the rights
to assemble, to instruct representatives, and to apply to the legislature for
redress of grievances, as protected by Article I, section 26, necessarily must
include a constitutional right for public officials to receive gifts,
entertainment, and honoraria, or for lobbyists to give restricted gifts to
public officials.� The fact that gifts may be "helpful" in creating
goodwill with public officials does not mean that Article I, section 26,
protects the delivery of gifts to them.

III.� CONCLUSION

We summarize our conclusions as
follows.� The trial court correctly granted summary judgment to the state on
plaintiffs' challenges to the receipt of gifts and payment of expenses for
entertainment restrictions under Article I, sections 8 and 26, of the Oregon
Constitution and the First Amendment to the United States Constitution.� However,
the trial court erred in granting summary judgment to the state in respect to
plaintiffs' challenges to the restrictions on "offer[ing]" gifts and
entertainment under Article I, section 8.� The trial court correctly granted
summary judgment to the state on plaintiffs' challenges to the solicitation of
gifts restrictions, because plaintiffs do not qualify as persons affected by
those restrictions under ORS 28.020.� Plaintiffs are entitled to a declaratory
judgment that the restrictions on offering gifts and entertainment violate
plaintiffs' free speech right under Article I, section 8.

The order of the circuit court is
affirmed in part and reversed in part, and the case is remanded to the circuit
court for further proceedings.

1.Plaintiffs
appealed the judgment, and, pursuant to Oregon Laws 2009, chapter 277, section
1, the parties filed a joint motion in the Court of Appeals to certify the
appeal to this court.� As required, the Court of Appeals granted that motion on
July 13, 2009, and this court accepted certification that same day.

"(1) During a calendar year, a public
official, a candidate for public office or a relative or member of the
household of the public official or candidate may not solicit or receive,
directly or indirectly, any gift or gifts with an aggregate value in excess of
$50 from any single source that could reasonably be known to have a legislative
or administrative interest in any governmental agency in which the public
official holds, or the candidate if elected would hold, any official position
or over which the public official exercises, or the candidate if elected would
exercise, any authority.

"(2) During a calendar year, a person who
has a legislative or administrative interest in any governmental agency in which
a public official holds any official position or over which the public official
exercises any authority may not offer to the public official or a relative or
member of the household of the public official any gift or gifts with an
aggregate value in excess of $50.

"(3) During a calendar year, a person who
has a legislative or administrative interest in any governmental agency in
which a candidate for public office if elected would hold any official position
or over which the candidate if elected would exercise any authority may not
offer to the candidate or a relative or member of the household of the
candidate any gift or gifts with an aggregate value in excess of $50.

"(4) Notwithstanding subsection (1) of this
section:

"(a) A public official, a candidate for
public office or a relative or member of the household of the public official
or candidate may not solicit or receive, directly or indirectly, any gift of
payment of expenses for entertainment from any single source that could
reasonably be known to have a legislative or administrative interest in any
governmental agency in which the public official holds, or the candidate if
elected would hold, any official position or over which the public official
exercises, or the candidate if elected would exercise, any authority.

"(b) A person who has a legislative or
administrative interest in any governmental agency in which a public official
holds any official position or over which the public official exercises any
authority may not offer to the public official or a relative or member of the
household of the public official any gift of payment of expenses for
entertainment.

"(c) A person who has a legislative or
administrative interest in any governmental agency in which a candidate for
public office if elected would hold any official position or over which the
candidate if elected would exercise any authority may not offer to the
candidate or a relative or member of the household of the candidate any gift of
payment of expenses for entertainment."

"(1) Except as provided in subsection (3)
of this section, a public official may not solicit or receive, whether directly
or indirectly, honoraria for the public official or any member of the household
of the public official if the honoraria are solicited or received in connection
with the official duties of the public official.

"(2) Except as provided in subsection (3)
of this section, a candidate for public office may not solicit or receive,
whether directly or indirectly, honoraria for the candidate or any member of
the household of the candidate if the honoraria are solicited or received in
connection with the official duties of the public office for which the person
is a candidate.

"(3) This section does not prohibit:

"(a) The solicitation or receipt of an
honorarium or a certificate, plaque, commemorative token or other item with a
value of $50 or less; or

"(b) The solicitation or receipt of an
honorarium for services performed in relation to the private profession,
occupation, avocation or expertise of the public official or candidate."

4.During
the 2009 legislative session, the legislature enacted Senate Bill (SB) 30
(2009), which amended several portions of ORS chapter 244, including ORS
244.020, ORS 244.025, and ORS 244.042.� Because those amendments have no
bearing on our discussion below, we refer to the 2007 version of the statute
throughout this opinion.

"[S]omething of economic value given to a public
official or a relative or member of the household of the public official:

"(A) Without valuable consideration of
equivalent value, including the full or partial forgiveness of indebtedness,
which is not extended to others who are not public officials or the relatives
or members of the household of public officials on the same terms and
conditions; or

"(B) For valuable consideration less than
that required from others who are not public officials.

"(b) 'Gift' does not mean:

"(A) Contributions as defined in ORS
260.005.

"(B)
Gifts from relatives or members of the household of the public official.

"(C)
An unsolicited token or award of appreciation in the form of a plaque, trophy,
desk item, wall memento or similar item, with a resale value reasonably
expected to be less than $25.

"(D)
Informational material, publications or subscriptions related to the
recipient's performance of official duties.

"(E) Admission provided to or the cost of
food or beverage consumed by a public official, or a member of the household or
staff of the public official when accompanying the public official, at a
reception, meal or meeting held by an organization before whom the public
official appears to speak or to answer questions as part of a scheduled
program.

"(F) Reasonable expenses paid by any unit of
the federal government, a state or local government, a Native American tribe
that is recognized by federal law or formally acknowledged by a state, a
membership organization to which a public body as defined in ORS 174.109 pays
membership dues or a not-for-profit corporation that is tax exempt under
section 501(c)(3) of the Internal Revenue Code and that receives less than five
percent of its funding from for-profit organizations or entities, for
attendance at a convention, fact-finding mission or trip, or other meeting if
the public official is scheduled to deliver a speech, make a presentation,
participate on a panel or represent state government as defined in ORS 174.111,
a local government as defined in ORS 174.116 or a special government body as defined
in ORS 174.117."

6.For
ease of discussion, we refer in this opinion to the person identified in the
statutory phrase "a public official, candidate for public office or a
relative or member of the household of the public official or candidate"
as a "public official."� Additionally, we refer to the persons or
entities identified in the statutory phrase "any single source that could
reasonably be known to have a legislative or administrative interest in any
governmental agency in which the public officials, or the candidate if elected
would hold, any official position or over which the public official exercise,
or the candidate if elected would exercise, any authority" as a
"lobbyist."

"'Lobbying' means influencing, or attempting
to influence, legislative action through oral or written communication with
legislative officials, solicitation of executive officials or other persons to
influence or attempt to influence legislative action or attempting to obtain
the goodwill of legislative officials."

8.Although
the statutory list of gift recipients does not include plaintiffs, we conclude
that plaintiffs are affected by the statutory restrictions within the meaning
of ORS 28.020.� If the restrictions on the receipt of gifts are enforceable,
they will have a practical impact on the manner in which plaintiffs conduct
their lobbying business.� In that event, the restrictions on gift-giving would
compel plaintiffs either to restrict their present goodwill-building activities
to gift-giving that meets the statutory monetary limits or to eliminate
gift-giving altogether.� Because the asserted effects of the receipt of gifts
restrictions on plaintiffs' lobbying business are neither hypothetical nor
abstract,�� plaintiffs may seek a declaration concerning the validity of those
restrictions.

11.We
note that, in challenging the restrictions on receiving gifts, plaintiffs might
seek to demonstrate through specific proof that the state is seeking to apply
the restrictions to their particular words or expression, but they have not
done so here.�

12.The
record below demonstrates that plaintiffs wish to "offer" gifts to
public officials, candidates for public office, and their relatives and
household members that would exceed the restrictions described above.� As a
consequence, plaintiffs are "affected" by those restrictions and they
may seek declaratory relief from their enforcement under ORS 28.020.

13.As
a result of our constitutional analysis regarding the statutory restrictions on
receiving a gift, we perceive no need or utility in determining whether the
restriction on offering a gift falls within a well-established historical
exception.

"'Honorarium' means a payment or something
of economic value given to a public official in exchange for services upon
which custom or propriety prevents the setting of a price.� Services include,
but are not limited to, speeches or other
services rendered in connection with an event."

The statutory restrictions on soliciting or receiving gifts
in ORS 244.025 (1) and (4)(a) apply to a "relative" of a public
official or candidate for public office.� However, the statutory restrictions
on receiving honoraria in ORS 244.042(1) and (2) do not mention
"relatives" and, thus, do not apply to relatives of public officials
or candidates for public office, unless the relative also is a public official,
candidate for public office, or member of their household.

15.We
have recognized that the legislature has constitutional authority to confer
standing on "any party" in an agency proceeding to seek judicial
review of the agency's final order without a further showing of interest.� Marbet
v. Portland Gen. Elect., 277 Or 447, 453, 561 P2d 154 (1977).� No such
conferral has occurred here.� We also have recognized that the legislature may
deputize its citizens to challenge governmental action in the public interest,
even though the particular plaintiff may have no personal stake in the
proceeding.� Kellas v. Dept. of Corrections, 341 Or 471, 484, 145 P3d
139 (2006).� In contrast to the statute reviewed in Kellas, no statute
deputizes the entire public, or any smaller group that might include
plaintiffs, to challenge the solicitation restrictions at issue here.